Opinion
# 2015-045-001 Claim No. 122437 Motion No. M-85825
01-30-2015
ALTO PROPERTIES, LLC v. THE STATE OF NEW YORK
Flower, Medalie & Markowitz, Esqs. By: Edward Flower, Esq. Hon. Eric T. Schneiderman, Attorney General By: Charles E. Gary, Assistant Attorney General
Synopsis
Claimant moves for an order striking a rebuttal engineering report when the original expert report was prepared by an appraiser.
Case information
UID: | 2015-045-001 |
Claimant(s): | ALTO PROPERTIES, LLC |
Claimant short name: | ALTO |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122437 |
Motion number(s): | M-85825 |
Cross-motion number(s): | |
Judge: | GINA M. LOPEZ-SUMMA |
Claimant's attorney: | Flower, Medalie & Markowitz, Esqs. By: Edward Flower, Esq. |
Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Charles E. Gary, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 30, 2015 |
City: | Hauppauge |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Claimant's Affirmation, Defendant's Affirmation in Opposition with annexed Exhibit 1 and Claimant's Reply Affirmation.
Claimant, Alto Properties, LLC, brought this motion seeking an order striking defendant's rebuttal report.
The underlying claim in this matter concerns the permanent and temporary appropriation of certain land and improvements by defendant, the State of New York, on or about October 9, 2012.
Pursuant to 22 NYCRR 206.21 (b) the parties are required to file with the clerk of the court the appraisal of each appraiser whose testimony is intended to be relied upon at trial within six months from the date of the completion of filing and service of the claim. 22 NYCRR 206.21 (d) provides that where an expert other than a valuation expert is intended to be relied upon at trial, the expert's report shall be filed within the same time limitations as stated in subsection (b).
In the case at hand, the claim was filed on February 27, 2013. After requests for extensions of the time the parties had to file their expert reports were granted, both claimant and defendant filed appraisal reports. The reports were exchanged by the clerk of the court pursuant to 22 NYCRR 206.21 (e) on September 3, 2014. On October 3, 2014 defendant filed two reports entitled rebuttal reports, one prepared by an appraiser and one prepared by an engineer. Claimant objects to the filing of the report prepared by the engineer.
22 NYCRR 206.21 (g) provides that if a party intends at trial to offer expert evidence in rebuttal to any report or amended or supplemental report, the expert's report shall be filed within one month after receipt of the document sought to be rebutted.
The rules do not place a restriction on the type of expert permitted to be used in preparing the rebuttal report. The only condition placed on filing a rebuttal, supplemental or amended report is timeliness (Upstate Fed. Credit Union v State of New York, 192 Misc 2d 177 [Ct Cl 2002]; Stavan Center, L.P. v State of New York, UID No. 2001-027-575 [Ct Cl, Waldon, J., June 28, 2001]). Defendant filed the report prepared by the engineer within one month of its receipt of the claimant's report. Claimant has failed to put forth sufficient cause to warrant the relief sought in its motion. At trial the Court will determine the weight, if any, it will give to defendant's experts and their reports.
Notwithstanding this Court's aforementioned determination, it is of note that defendant additionally posits that the report prepared by its engineer can be regarded as a supplemental report to its original appraisal report. Viewed in this light, claimant, by rule, would have one month after receipt of the engineer's report to rebut it.
Therefore, for the foregoing reasons, claimant's motion is denied, however, claimant shall be permitted to file a rebuttal report to the engineer's report within one month from the date this Decision and Order is filed.
January 30, 2015
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims